§46-4  County zoning.  (a)  This sectionand any ordinance, rule, or regulation adopted in accordance with this sectionshall apply to lands not contained within the forest reserve boundaries asestablished on January 31, 1957, or as subsequently amended.

Zoning in all counties shall be accomplishedwithin the framework of a long-range, comprehensive general plan prepared orbeing prepared to guide the overall future development of the county.  Zoningshall be one of the tools available to the county to put the general plan intoeffect in an orderly manner.  Zoning in the counties of Hawaii, Maui, and Kauaimeans the establishment of districts of such number, shape, and area, and theadoption of regulations for each district to carry out the purposes of thissection.  In establishing or regulating the districts, full consideration shallbe given to all available data as to soil classification and physical usecapabilities of the land to allow and encourage the most beneficial use of theland consonant with good zoning practices.  The zoning power granted hereinshall be exercised by ordinance which may relate to:

(1)  The areas within which agriculture, forestry,industry, trade, and business may be conducted;

(2)  The areas in which residential uses may be regulatedor prohibited;

(3)  The areas bordering natural watercourses,channels, and streams, in which trades or industries, filling or dumping,erection of structures, and the location of buildings may be prohibited orrestricted;

(4)  The areas in which particular uses may besubjected to special restrictions;

(5)  The location of buildings and structures designedfor specific uses and designation of uses for which buildings and structuresmay not be used or altered;

(6)  The location, height, bulk, number of stories,and size of buildings and other structures;

(7)  The location of roads, schools, and recreationareas;

(8)  Building setback lines and future street lines;

(9)  The density and distribution of population;

(10)  The percentage of a lot that may be occupied,size of yards, courts, and other open spaces;

(11)  Minimum and maximum lot sizes; and

(12)  Other regulations the boards or city council findnecessary and proper to permit and encourage the orderly development of landresources within their jurisdictions.

The council of any county shall prescriberules, regulations, and administrative procedures and provide personnel itfinds necessary to enforce this section and any ordinance enacted in accordancewith this section.  The ordinances may be enforced by appropriate fines andpenalties, civil or criminal, or by court order at the suit of the county orthe owner or owners of real estate directly affected by the ordinances.

Any civil fine or penalty provided by ordinanceunder this section may be imposed by the district court, or by the zoningagency after an opportunity for a hearing pursuant to chapter 91.  Theproceeding shall not be a prerequisite for any injunctive relief ordered by thecircuit court.

Nothing in this section shall invalidate anyzoning ordinance or regulation adopted by any county or other agency ofgovernment pursuant to the statutes in effect prior to July 1, 1957.

The powers granted herein shall be liberallyconstrued in favor of the county exercising them, and in such a manner as topromote the orderly development of each county or city and county in accordancewith a long-range, comprehensive general plan to ensure the greatest benefitfor the State as a whole.  This section shall not be construed to limit orrepeal any powers of any county to achieve these ends through zoning andbuilding regulations, except insofar as forest and water reserve zones areconcerned and as provided in subsections (c) and (d).

Neither this section nor any ordinance enactedpursuant to this section shall prohibit the continued lawful use of anybuilding or premises for any trade, industrial, residential, agricultural, orother purpose for which the building or premises is used at the time thissection or the ordinance takes effect; provided that a zoning ordinance mayprovide for elimination of nonconforming uses as the uses are discontinued, orfor the amortization or phasing out of nonconforming uses or signs over areasonable period of time in commercial, industrial, resort, and apartmentzoned areas only.  In no event shall such amortization or phasing out ofnonconforming uses apply to any existing building or premises used forresidential (single-family or duplex) or agricultural uses.  Nothing in thissection shall affect or impair the powers and duties of the director oftransportation as set forth in chapter 262.

(b)  Any final order of a zoning agencyestablished under this section may be appealed to the circuit court of thecircuit in which the land in question is found.  The appeal shall be inaccordance with the Hawaii rules of civil procedure.

(c)  Each county may adopt reasonable standardsto allow the construction of two single-family dwelling units on any lot wherea residential dwelling unit is permitted.

(d)  Neither this section nor any other law,county ordinance, or rule shall prohibit group living in facilities with eightor fewer residents and that are licensed by the State as provided for undersection 321-15.6, or in an intermediate care facility/mental retardation-communityfor persons, including mentally ill, elder, disabled, developmentally disabled,or totally disabled persons, who are not related to the home operator orfacility staff; provided that those group living facilities meet all applicablecounty requirements not inconsistent with the intent of this subsection andincluding building height, setback, maximum lot coverage, parking, and floorarea requirements.

(e)  No permit shall be issued by a countyagency for the operation of a halfway house, a clean and sober home, or a drugrehabilitation home unless a public informational meeting is first held in theaffected community.  The State shall provide notification and access torelevant information, as required, under chapter 846E.

A clean and sober home shall be considered aresidential use of property and shall be a permitted or conditional use inresidentially designated zones, including but not limited to zones forsingle-family dwellings.

(f)  For purposes of this section:

"Clean and sober home" means a housethat is operated pursuant to a program designed to provide a stable environmentof clean and sober living conditions to sustain recovery and that is shared byunrelated adult persons who:

(1)  Are recovering from substance abuse;

(2)  Share household expenses; and

(3)  Do not require twenty-four-hour supervision,rehabilitation, or therapeutic services or care in the home or on the premises;

provided that the home shall meet all applicablelaws, codes, and rules of the counties and State.

"Developmentally disabled person"means a person suffering from developmental disabilities as defined undersection 333F-1.

"Disabled person" means a person witha disability as defined under section 515-2.

"Drug rehabilitation home" means:

(1)  A residential treatment facility that provides atherapeutic residential program for care, diagnosis, treatment, orrehabilitation for socially or emotionally distressed persons, mentally illpersons, persons suffering from substance abuse, and developmentally disabled persons;or

(2)  A supervised living arrangement that providesmental health services, substance abuse services, or supportive services forindividuals or families who do not need the structure of a special treatmentfacility and are transitioning to independent living;

provided that drug rehabilitation homes shall notinclude halfway houses or clean and sober homes.

"Elder" means an elder as definedunder section 356D-1.

"Halfway house" means a group livingfacility for people who:

(1)  Have been released or are under supervisedrelease from a correctional facility;

(2)  Have been released from a mental health treatmentfacility; or

(3)  Are receiving substance abuse or sex offendertreatment; and

are housed to participate in programs that help themreadjust to living in the community.

"Intermediate care facility/mentalretardation-community" means an identifiable unit providing residence andcare for eight or fewer mentally retarded individuals.  Its primary purpose isthe provision of health, social, and rehabilitation services to the mentallyretarded through an individually designed active treatment program for eachresident.  No person who is predominantly confined to bed shall be admitted asa resident of such a facility.

"Mental health treatment facility"means a psychiatric facility or special treatment facility as defined undersection 334-1.

"Mentally ill person" has the samemeaning as defined under section 334-1.

"Totally disabled person" means a"person totally disabled" as defined under section 235-1.

"Treatment program" means a"substance abuse program" or "treatment program", as thoseterms are defined under section 353G-2.

(g)  Neither this section nor any other law,county ordinance, or rule shall prohibit the use of land for employee housingand community buildings in plantation community subdivisions as defined insection 205-4.5(a)(12); in addition, no zoning ordinance shall provide forelimination, amortization, or phasing out of plantation community subdivisionsas a nonconforming use. [L 1957, c 234, pt of §6 and §9; am L Sp 1959 2d, c 1,§§26, 38; am L 1965, c 140; Supp, §138-42; HRS §46-4; am L 1980, c 203, §1; amL 1981, c 229, §2; am L 1982, c 54, §5; am L 1985, c 272, §3; am L 1986, c 177,§1; am L 1987, c 109, §2, c 193, §1, and c 283, §4; am L 1988, c 141, §§5, 6and c 252, §1; am L 1989, c 313, §1; am L 1990, c 67, §3; am L 1997, c 350,§15; am L 2004, c 212, §2; am L 2005, c 139, §3; am L 2006, c 237, §2; am L2007, c 249, §7]

 

Cross References

 

  Zoning within land use districts, see §§205-5, 6.

  See also county charters.

 

Rules of Court

 

  Appeal to circuit court, see HRCP rule 72.

 

Attorney General Opinions

 

  Counties have the power to prescribe lot sizes within anagricultural district established by the state land use commission.  Att. Gen.Op. 62-33.

  Preempts conflicting county fire and building codes.  Att.Gen. Op. 84-7.

  Immunity of state land from county planning and zoning lawsextends to private nonprofit lessee undertaking park project in publicinterest.  Att. Gen. Op. 86-3.

 

Law Journals and Reviews

 

  Kaiser Hawaii Kai Development Company v. City and County ofHonolulu:  Zoning by Initiative in Hawaii.  12 UH L. Rev. 181.

  Honolulu's Ohana Zoning Law:  To Ohana or Not to Ohana.  13UH L. Rev. 505.

  The Lum Court, Land Use, and the Environment:  A Survey ofHawai‘i Case Law 1983 to 1991.  14 UH L. Rev. 119.

  The Manoa Valley Special District Ordinance:  Community-BasedPlanning in the Post-Lucas Era.  19 UH L. Rev. 449.

  Water Regulation, Land Use and the Environment.  30 UH L.Rev. 49.

  Maui's Residential Workforce Housing Policy:  Finding theBoundaries of Inclusionary Zoning.  30 UH L. Rev. 447.

 

Case Notes

 

  Where county officials assured developer that developer'splans met zoning requirements and developer expended substantial sum inreliance, the city was estopped from denying developer a building permit undera subsequently enacted ordinance.  60 H. 446, 592 P.2d 26.

  Section does not relate to a city's executive, legislativeand administrative structure and organization; zoning by initiative isimpermissible.  70 H. 480, 777 P.2d 244.

  Public utilities commission has the authority to regulate theheight of utility poles.  72 H. 285, 814 P.2d 398.

  As state water code expressly reserves the counties'authority with respect to land use planning and policy, water resourcemanagement commission allegedly imposing a "directive" on thecounties to designate priorities among proposed uses did not usurp counties'land use planning and zoning authority.  94 H. 97, 9 P.3d 409.

  Rezoning is a legislative function; a zoning ordinance is alegislative act and is subject to the deference given legislative acts.  102 H.465, 78 P.3d 1.

  Grandfather protections afforded a property owner under thissection and land use ordinance intended to prohibit new zoning ordinances frominterfering with an owner's lawful uses of a building or premises under anexisting zoning ordinance.  86 H. 343 (App.), 949 P.2d 183.

  "Lawful use" and "previously lawful", asused in this section and land use ordinance, respectively, refer to compliancewith previous zoning laws, not the building codes or other legal requirementsthat may be applicable to the construction or operation of a structure.  86 H.343 (App.), 949 P.2d 183.